S.K. Kaul, J.
1. This is an appeal from jail by Lugar against his conviction and sentence to undergo 6 years' R. I. under Section 304, I, P.C. According to the prosecution case the deceased and the accused are real brothers. In consolidation operations the land belonging to these brothers was cartitioned in this way that northern portion was given to the accused, while southern portion was given to the deceased. The deceased had started residing at his father-in-law's place in village Amriya while the ancestral land is situate in village Murchawa. It appears that the deceased did not find southern portion of any productive value and, therefore, he desired that northern portion may be given to him which was in his possession earlier to the consolidation operations. The accused, however, did not agree to this proposal. In 'Asadh' before this incident the deceased is laid to have come to this village on 26th |uly, 1972 at about 9 p.m. and soon thereafter there was an exchange of hot words between the accused and the deceased and ultimately the accused is said to have given two lathi blows upon the deceased on account of which the deceased fell down and became unconscious. F. I. R. of this incident was lodged by Orilal on 27th July, 1972 at about 8.30 p.m. The distance between the village and the police station is about two miles-The case was registered under Section 308 I. P.C. It appears that some sort of first aid was given to the deceased. Ultimately the deceased succumbed to his injuries and consequently the case was amended as one falling under Section 304, I. P. C
2. Investigation was done in the usual manner. The body of the deceased was sent for autopsy which was done on 1st August, 1973 by Dr. B D Misra. The following ante-morteno injuries were found upon the deceased:
(1) Stitched lacerated wound 5 cm. x 0-5 cm. scalp deep vertical slightly oblique situated 5Vz cm- above roof of nose slightly an left side of head.
2. Black eye 7 cm. x. 4 cm. around left
3. Sub-conjunctival haemorrhage left eye-eye.
4. Lacerated stitched wound 1.5 cm. x 0.2 cm. on superficial scalp circulated left side head 6 cm. above and behind left ear longitudinal fissured portion of left side.
5. Contusion left temporal region 4Vfe cm. x 2-5 cm. on left side. On internal exmination it was found that there was fissured fracture on left side of parietal bone as shown underneath injuries 1, 5 and 4 for which a diagram was also made. A big clot haemorrhage 8 cm. x 6% cm. was present over left side head. Membrances were congested on left side. Head was found congested more on left side.
3. According to the opinion of Dr, B. D. Misra death was caused due to shock and haemorrhage from the injuries noted above-
4. After completing investigation the accused appellant was asked to stand his trial under Section 304, I. P.C.
5. The defence of the accused was that there was no altercation or dispute between him and the deceased inasmuch as after consolidation one had nothing to do with the possession of the other. He denied that he had anything to do with this occurrence. He alleged false implication on account of enmity with Ori Lai. He also alleged enmity with Chhotey and Balai.
6. The learned Additional Sessions Judge found the prosecution story established and as a result sentenced and convicted the appellant as above.
7. I have gone through the evidence with the assistance of the Assistant Government Advocate and in my view this appeal has to be allowed.
8. For the information of the learned Additional Sessions Judge, I would Wee to remark that it was his duty to have found whether the offence committed fell under part I of Section 304, I. P. C, or under Part II of the aforesaid section. Besides, I find that the learned Additional Sessions Judge for reasons best known to him found that there was nothing to discredit the testimony of P.Ws. Balai and Chhotey. However from their cross-examination, it comes out from it that they could not have seen this marpit at all. I may note here that Ori Lai was declared hostile and his testimony on the question of marpit was rejected by the learned Additional Sessions Judge. Balai and Chhotey both tried to say that after hearing altercation when they reached the spot, they found the accused delivering Danda blows upon Pati Ram. In the court of the committing magistrate Balai however gave the following statement which he admitted to be correct: 'When we reached the spot we found Pati Ram having fallen on the ground. Lutai was not present there. Ha had run away'. Chholey admitted to have given the following statement in the court of the committing magistrate: 'When I reached the spot; marpit had come to an end and Pati Ram had fallen down.'
9. The site-plan would go to show that the house of Balai lay at a distance of 30 paces from the scene of occurrence while the house of Chhotey lies at a distance of 40 steps from the scene of occurrence. It is, therefore, obvious that both these witnesses tried to resile from what they stated before the court of the committing magistrate and tried to make themselves eye witnesses of the actual marpit This was enough to discredit their testimony. We expect the Sessions Judges to properly appraise the testimony of witnesses. It is surprising that the portions noted above by me, as stated by these two witnesses in the court of the committing magistrate, were completely lost sight of by the learned Additional Sessions Judge, who held these witnesses to be witnesses of actual marpit. Suffice it to say that both these witnesses in the court of the committing magistrate categorically stat- ed that before they arrived on the scene of occurrence the marpit had come to an end and not only Pati Ram had fallen down, but the accused was not there. There is thus no evidence on record to connect the accused with the offence with which he was asked to stand his trial.
10. As a result, I would allow this appeal, set aside the sentence and conviction awarded to the accused by the learned Additional Sessions Judge and acquit him of the charge punishable under Section 304, I- P. C The accused is in jail. He shall be set at liberty forthwith unless wanted in any other case.
11. A copy of this order shall be sent to the Superintendent Jail concerned for immediate compliance of the order because I feel that this accused without his fault is undergoing imprisonment for 1 1/2 years and it would not be fair if he is allowed to remain behind the bars even for a day.